97.01

OPINION NO. 97-01

Ethics Commission advice has been requested as to whether a Department of Natural Resources regional public affairs officer for the Eastern Shore may serve as an elected member of the Ocean City Council. We advise based on the information provided as to the Requestor's duties within the agency that this affiliation is allowable, but only within significant constraints with certain understandings as to future concerns.

The Requestor was originally employed by the Department of Natural Resources in 1988 and served as the agency's representative with the Town of Ocean City and Worcester County for the Beach Replenishment Project. Apparently changes in her position have been made over time and in part as a result of the completion of the Replenishment Program. Also, in 1992 the agency decided to establish 4 regional public relations offices around the State, including one in the Eastern Shore area, which would employ local individuals to serve as media and general public relations liaisons. The Requestor was assigned to the Eastern Shore position at that time, and according to the agency no longer plays a role in its ongoing Beach Replenishment activities. Her current job relates to the public relations, information, publicity and promotional programs for all divisions of the Department of Natural Resources in the Eastern Region. She conducts press conferences, compiles data, and directs citizen or interest group concerns to the proper agency or director. Though the position focuses primarily on media and general public relations, there are some specific references to local government relations.

Despite this inclusion of some duties relating to local jurisdictions, the Requestor and agency officials state that in fact her interaction with local jurisdictions and particularly with Ocean City are at most inconsequential. Agency managers indicate that the ongoing activities of the Department with the Town are its obligations to continue to maintain the Beach. This involves contributing money along with the Town and the federal Corps of Engineers to do annual replenishment and upkeep when there is a bad storm. Actual engineering of this work is done in the Land and Water Conservation Service, an operational unit of the Department with which the Requestor is not involved. According to the Department's Deputy Secretary, the Requestor's role is entirely as a communicator of agency policy. She apparently has no role in developing funding approaches or in other agency policy or management decisions.

In advising employees of the State who have wanted to run for office or otherwise be involved in political activity, we have generally said that political activity, including holding of local office, is not generally prohibited by the Ethics Law (State Government Article, Title 15, Annotated Code of Maryland). In our Opinion No. 80-2, we considered the Ethics Law in relation to other provisions of State law that expressly allow political activity by State employees (now codified as §§2-304 and 2-307(b) of the State Personnel and Pension Article). Given these provisions and the absence of any express language to the contrary in the Ethics Law, we have generally advised that State employees may run for public office, providing that they do not use State time, facilities, or equipment, or otherwise misuse their State position or confidential information.

In Opinion No. 80-2, however, as well as in some subsequent opinions, we have said that holding a local office if elected could be viewed as employment that would be subject to the impairment prohibition of §15-502(b) of the Ethics Law. This section of the Law prohibits officials and employees from having any employment that would impair their impartiality or independence of judgment. In Opinion No. 83-34, in particular, a hearing officer in the Public Service Commission was advised that he could not serve on the Baltimore County Council, given the nature of his regulatory duties, and the constituent and other expectations relating to an elected office on the governing body of a major county. This advice has also been provided informally in several situations, where an employee proposed to run for office in a jurisdiction that had certain direct regulatory or contractual dealings with the individual's agency and agency program. Also, in some situations employees have been advised that they may not be assigned to perform official duties in the jurisdiction involved.

In the situation here, we initially expressed concern that the Department would have other funding and enforcement activities involving the Town and that the Requestor's function as the Department's primary liaison in the area would necessarily bring her into contact with local officials, businesses, and citizens. The agency, however, has indicated that in fact these relationships do not exist. The Requestor, the Deputy Secretary, and the agency's Personnel Manager all state that these kinds of situations are unlikely to arise, given that the Beach Replenishment program is in a routine operational status, as well as the Requestor's lack of management functions and the limited dealings between the agency and the Town. In the absence of direct relationships, the Commission has generally said that the impairment provisions of the Law, along with the participation, prestige of office, and information provisions in §§15-501, 15-506 and 15-507 of the Law are conduct provisions that must be followed by employees, but which do not in the absence of direct relationships constitute a strict bar to an affiliation.

Based on the information provided by the Requestor and her agency (including the affirmative support of the Secretary), we conclude that this approach can be applied here, and advise that the affiliation is not as described in conflict with the requirements of the Ethics Law. The Requestor and the Department, however, should be aware that this conclusion is based on the understanding that there are and continue to be no significant interactions between the agency and the Town of Ocean City. The Requestor must disqualify herself from any agency activities involving the Town and must keep in mind the potential for application of the prestige and information provisions of the Law in generally avoiding any official dealings with the Town. She also needs to be careful to clearly and on the record disqualify herself from any participation as a member of the Council in matters relating to the DNR, and to avoid any situation where her State status could be at issue in dealing on behalf of the Town with other State agencies.

This advice, moreover, applies only for as long as the situation continues as currently described. If major legal or public relations issues should develop in the future, the Requestor's service on the Town's governing body may need to be discontinued if she is to retain her DNR employment. Also, the Requestor should seek the advice of the Ocean City Ethics Commission regarding considerations under the local ethics law. We do not express any opinion or views as to local law requirements, and our opinion as to the State Law should not in any way be viewed as controlling under the local ethics law.

Michael L. May, Chairman,
    Mark C. Medairy, Jr.,
    Charles O. Monk, II,
    Robert J. Romadka,
    April E. Sepulveda

Date: January 9, 1997